President Biden’s attempt to deal efficiently with a new surge of migration following the end of Title 42 pandemic restrictions has focused new attention on a severe shortage of judges, the result of longstanding neglect that has overwhelmed the immigration court system with a backlog of more than 2 million cases.
The court system is riddled with yearslong delays and low morale as judges struggle to keep up with the volume of immigration cases, leaving undocumented immigrants who have long waited in the United States in limbo.
The bottleneck shows how the challenges of dealing with a surge in immigration do not end at the southern border. Even as scrutiny has turned to how Border Patrol agents will manage crowds of migrants, public officials and immigration experts say that bolstering the invisible work force of immigration judges is crucial to reforming the system.
President Biden has made slight progress — hiring nearly 140 judges since fiscal year 2022 — but is still falling short on his campaign pledge to double the number of immigration judges. Still, some of the judges will be working seven days a week while the administration confronts the new surge, according to the Justice Department.
Eliza C. Klein, who left her position as an immigration judge in April, said the latest increase of illegal crossings will strain the understaffed work force of about 650 judges as they prioritize migrants who recently crossed the border. That will leave some older cases to languish even longer, she said.
“This is a great tragedy because it creates a second class of citizens,” said Ms. Klein, who started working as an immigration judge in the Clinton administration, said of those immigrants who have been waiting years for an answer to their case. The oldest case Ms. Klein ever adjudicated had been pending in the court for 35 years.
“It’s a disgrace,” she said. “My perspective, my thought, is that we’re not committed in this country to having a just system.”
The backlog of immigration cases grew to 1 million in 2019 during the Trump administration. It has increased since then to more than 2 million cases, according to data collected by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. The average time it takes to close an immigration case is about four years, according to the database. But some judges say they still have immigration cases that have been pending for more than a decade.
Alejandro Mayorkas, the homeland security secretary, said this week that the backlog was a “powerful example of a broken immigration system,” as he pleaded for Congress to pass immigration reform legislation.
In his 2023 budget request, Mr. Biden asked for $1.5 billion to address the backlog and to hire 200 more judges. Congress only appropriated funds for an additional 100 judges, for a total of 734 positions. The government is still working to fill the slots.
Mr. Mayorkas said the Homeland Security Department was bringing a surge of asylum officers to the border to help with new arrivals while “the Department of Justice is surging immigration judges alongside us.”
Mimi Tsankov, the president of the National Association of Immigration Judges, said that to truly address the backlog, the Biden administration would need to do more than simply hire more judges. She said that the government should increase funding for better technology and bigger legal teams, and that Congress should reform the nation’s immigration laws.
“The immigration courts are failing,” said Samuel B. Cole, the judge association’s executive vice president. “There needs to be broad systemic change.”
The judges essentially form the backbone of the nation’s immigration system. The group is under a division of the Justice Department, rather than the judiciary branch, and operates in nearly 70 courts around the nation. Many of the immigration cases are handled remotely, however, and many judges report that the software used is prone to malfunctioning.
“I don’t think the United States has ever treated the adjudication for any immigration benefit as a priority for its immigration policy,” said Cristobal Ramón, an immigration consultant who has written for the Migration Policy Institute and the George W. Bush Institute.
The Title 42 border restrictions, enacted by the Trump administration, empowered border agents to rapidly turn away migrants without providing them a chance to apply for asylum, on the grounds that it would prevent the spread of Covid-19.
Now that the restrictions have been lifted, many migrants will once again be able to apply for asylum by securing an appointment through an app, crossing and convincing an immigration officer that they have a credible fear of persecution at home, or crossing illegally and being released in the United States. Regardless, they will likely wait for years in the United States before getting a resolution in their case.
Typically, after a migrant has crossed the border, he or she is questioned by an asylum officer to determine if the person has a credible fear of persecution at home. After meeting the standard, many are released into the United States and wait years until they are heard in court.
As president, Donald J. Trump derided the American asylum program, saying migrants fleeing poverty and corruption were part of a “scam” and a “hoax.” As he sought to curb illegal and legal immigration, Mr. Trump imposed a quota of completing 700 cases a year, which the judges union said came at the expense of due process.
Judge Charles Honeyman, who spent 24 years as an immigration judge, said he was nervous about retiring in 2020 because he feared he would be replaced by an ideologue. He became a judge in part because of his love for the court, his family’s immigrant history of passing through Ellis Island and a fascination with migration patterns around the world.
When handling the case of an asylum seeker, Mr. Honeyman said he would assess the migrant’s application, as well as examine the state of the person’s home country by reading reports from the State Department and nonprofits. Many of them lacked attorneys; he believes some cases that he denied may have turned out differently if the migrants had representation.
The Border Patrol is already holding 28,000 migrants along the border in detention facilities, many of whom will ask for asylum.
“What happens to the cases left behind?” said Mr. Honeyman, who served in Philadelphia. “It seems overwhelmingly impossible to ever reach some kind of equilibrium where enough cases move along and justice is served.”
Mr. Biden removed the Trump-era quotas on immigration judges when he came into office and in 2021 instituted a system to try to make the processing of asylum cases more efficient.
The Biden administration placed about 110,000 cases involving new arrivals on a dedicated docket, with the aim of finishing them within a year. About 83 percent of those cases were closed but just 34 percent of the migrants found representation, according to the Syracuse database. Migrants have the right to an attorney, although the government is not required to pay for legal representation. Only 3,000 of the migrants were granted asylum.
Ms. Klein now fears her former colleagues will once again be forced to hurry through dozens of cases at a time.
“You’re being treated like all you’re doing is numbers. You’re just finishing a certain number of digits per day,” Ms. Klein said. “There has been a significant drop off in the ability to take pride in your work.”
